Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 23, 2023

CASE NO(S).: OLT-22-002292

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Dean Artenosi Subject: Consent - refused by Approval Authority Description: Propose to sever the subject lands to create one new rural residential lot as well as a boundary adjustment. Reference Number: 2021-B-07 Property Address: 104 Becketts Sideroad Municipality/UT: Tay/Simcoe OLT Case No: OLT-22-002292 OLT Lead Case No: OLT-22-002292 OLT Case Name: Artenosi v. Tay (Township)

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Dean Artenosi Subject: Consent - refused by Approval Authority Reference Number: 2021-B-08 Property Address: 1930 Gratrix Road Municipality/UT: Tay/Simcoe OLT Case No: OLT-22-002294 OLT Lead Case No: OLT-22-002292

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Dean Artenosi Subject: Consent - refused by Approval Authority Reference Number: 2021-B-09 Property Address: 1900 Gratrix Road Municipality/UT: Tay/Simcoe OLT Case No: OLT-22-002295 OLT Lead Case No: OLT-22-002292

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Dean Artenosi Subject: Consent - refused by Approval Authority Reference Number: 2021-B-10 Property Address: 1810 Gratrix Road Municipality/UT: Tay/Simcoe OLT Case No: OLT-22-002296 OLT Lead Case No: OLT-22-002292

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Dean Artenosi Subject: Consent - refused by Approval Authority Reference Number: 2021-B-11 Property Address: 1767 Rosemount Road Municipality/UT: Tay/Simcoe OLT Case No: OLT-22-002297 OLT Lead Case No: OLT-22-002292

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Dean Artenosi Subject: Consent - refused by Approval Authority Reference Number: 2021-B-12 Property Address: 1873 Rosemount Road Municipality/UT: Tay/Simcoe OLT Case No: OLT-22-002298 OLT Lead Case No: OLT-22-002292

Heard: December 7, 2022, by video hearing

APPEARANCES:

Parties	Counsel
Dean Artenosi	Ira Kagan & Sara Kagan
County of Simcoe	Marshall Green
Township of Tay	Carly Emmett

MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID BROWN AND C.I. MOLINARI AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This matter is an appeal filed by Dean Artenosi (the “Appellant”) under s. 53(19) of the Planning Act, R.S.O. 1990, c.P.13 (the “Act”) against the decision of the Township of Tay (the “Township”) Committee of Adjustment (the “CoA”) that refused six Applications for Consent (the “Applications”). The Applications affect the lands known municipally as: 104 Becketts Sideroad, 1810 Gratrix Road, 1900 Gratrix Road, 1930 Gratrix Road, 1767 Rosemount Road, and 1878 Rosemount Road (the “Application Lands”).

2The Appellant has acquired the rights to purchase the Application Lands, save and except for the portion of each lot occupied by the residential use. The portion of the lot occupied with the residential use will form the parcels to be severed and the retained lands of each of the Application Lands will be assembled by the Appellant and held under the same title as other parcels owned by the Appellant adjoining or in close proximity to the Application Lands.

3Three of the parcels of the Application Lands are located north of a former railway right-of-way (the “RoW”) and three parcels of the Application Lands are located on the south side of the RoW. The three parcels south of the RoW are contiguous (the “Subject Lands”).

4The Parties have negotiated Minutes of Settlement (MoS) to resolve the matters before the Tribunal and requested that these proceedings be converted to a Settlement hearing. The Tribunal consented and convened these proceedings as a Settlement hearing.

SETTLEMENT PROPOSAL

5The MoS propose that the appeals under Tribunal Case numbers OLT-22-002292, OLT-22-002294, and OLT-22-002298 be dismissed.

6Further, the MoS propose that the retained lands of the remaining appeals be merged in title (the “Resultant Lands”) and merged with the abutting parcel owned by the Appellant. The MoS propose that the Resultant Lands will be rezoned to an Environmental Protection (EP) zone with a site-specific designation that prohibits Forestry Use on the Resultant Lands (collectively the “Proposal”).

LEGISLATIVE FRAMEWORK

7When considering an appeal pursuant to s. 53(19) of the Act, the Tribunal must be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the municipality as required by s. 53(1) of the Act.

8Should the Tribunal be satisfied that a plan of subdivision is not necessary, s. 53(12) of the Act states that, the Tribunal in determining whether provisional consent is to be given shall have regard to the matters under s. 51(24) which states:

51(24) In considering a draft plan of subdivision, regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,

(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;

(b) whether the proposed subdivision is premature or in the public interest;

(d) the suitability of the land for the purposes for which it is to be subdivided;

(d.1) if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;

(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;

(f) the dimensions and shapes of the proposed lots;

(g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;

(h) conservation of natural resources and flood control;

(i) the adequacy of utilities and municipal services;

(j) the adequacy of school sites;

(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;

(l) the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and

(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006. 1994, c. 23, s. 30; 2001, c. 32, s. 31 (2); 2006, c. 23, s. 22 (3, 4); 2016, c. 25, Sched. 4, s. 8 (2).

PLANNING EVIDENCE

9The Tribunal qualified Chris Pereira to provide expert opinion evidence in respect to matters of land use planning. The Tribunal received an Affidavit from Mr. Pereira in support of the MoS and marked the Affidavit as Exhibit 1.

10A Book of Documents was filed with the Tribunal and marked as Exhibit 2.

11In his Affidavit, Mr. Pereira opined that the proposed consents do not require a plan of subdivision as no new roads are being created and no lands are proposed to be dedicated to a public authority.

12In respect to the criteria set out in s. 51(24) of the Act, Mr. Pereira proffered that the Proposal will not result in the creation of a new lot and the proposed severances will not change the existing uses of the severed or retained lands and will not impact the natural resources or flood hazards on or surrounding the Subject Lands. He concluded that the proposed severances have appropriate regard for the criteria set out.

13Mr. Pereira, in his affidavit, reviewed the policies of the Provincial Policy Statement, 2020 (the “PPS”) and concluded that the Proposal is consistent with the PPS. The Proposal preserves the existing rural character, while seeking to consolidate rural lands into a common ownership. The Proposal also ensures that the existing rural housing stock remains as per the existing conditions. The Proposal is also locally appropriate and is compatible with the rural landscape by maintaining the existing conditions. No new servicing is required, and existing rural service levels will remain in effect.

14Mr. Pereira confirmed that the Proposal does not impact any natural heritage features as there is no change proposed to the existing land use. Further, he confirmed that the severed lands of the Applications are clear of any natural heritage features and their ecological function remains unaffected. Mr. Pereira summarized the severances as simply a change in the location of the property lines and nothing more. Mr. Pereira opined that a change of the property boundary configurations is consistent with the applicable policies of the PPS.

15In his affidavit, Mr. Pereira reviewed A Place to Grow: The Growth Plan for the Greater Golden Horseshoe, 2020 (the “GP”). The GP outlines a framework for rural areas and sets criteria for lands adjacent to Key Natural Heritage Features which specifically notes that development and site alterations are not permitted. Mr. Pereira outlined that the severance of the three one-acre parcels and the merging of the contiguous retained parcels with adjoining lands results in a total of four parcels and four parcels currently exist, thus resulting in no new development. Additionally, Mr. Pereira advised that no site alteration is proposed as all existing conditions and dwellings are being maintained and recognized through this process.

16Mr. Pereira concluded that the Proposal conforms with the policies of the GP.

17The County of Simcoe (the “County”) Official Plan designates the Subject Lands Greenbelt. Mr. Pereira reiterated no additional uses are being proposed or contemplated and the Proposal seeks to recognize the existing dwellings on the severed portions and the dwellings will maintain their current accesses and frontages onto a public highway continuing their historical function. Mr. Pereira opined that the Proposal conforms with the County Official Plan (“COP”), and specifically policy 3.3.5 which states that consents for the purpose of consolidation of land holdings may be permitted but shall not be for the purpose of creating new lots except as otherwise permitted in the COP.

18Mr. Pereira proffered that the Proposal conforms to the Township Official Plan (the “TOP”) as the Proposal will result in no new lots being created. In his Affidavit, Mr. Pereira stated that the severed parcels maintain their current sizes, location, and access points. The consent is being requested to facilitate the consolidation of the Resultant Lands and no new lots are being proposed and no land use change is being contemplated.

19Mr. Pereira confirmed that the lands are zoned Rural (RU) and Environmental Protection (EP) in the Township Zoning By-Law No. 2000-57 (the “ZBL”). Mr. Pereira proffered that the severed lands and the Resultant Lands comply with the ZBL.

20Mr. Pereira reviewed the proposed conditions of Provisional Consent arising from the MoS:

a) That a copy of a registered reference plan for the subject land indicating the severed and retained parcels be prepared by an Ontario Land Surveyor and submitted to the Secretary-Treasurer.

b) That the applicant’s solicitor prepares and submit a copy of the proposed conveyances for the severed parcels to perfect the severances and of the conveyances of the retained lands to Artenosi, for review by the Township and the County.

c) That the Certificate of Consent be issued utilizing Form 2, Section 53 (42) of the Planning Act, R.S.O. 1990, without qualification provided that the Applicant shall not request that the certificate be issued for the retained lands as would otherwise be permitted by Section 53(42.1) of the Planning Act R.S.O. 1990.

d) That Dean Artenosi successfully rezone the retained lands to an Environmental Protected (EP) Zone with an exception to remove Forestry Use.

e) That the conditions of consent imposed by the Committee be fulfilled within two (2) years from the date of the giving of the notice of decision (Approval shall lapse where the conditions have not been fulfilled within two (2) years of being imposed. WARNING: Failing to fulfil the conditions within the above-noted statutory periods (Sections 53(41) & 53(43), the Planning Act R.S.O. 1990) shall cause the application to lapse and render this Decision null and void.

21Mr. Pereira testified that condition #1 and condition #5 are standard or typical conditions imposed by the CoA in respect to applications of this nature and are appropriate to be attached to a Provisional Consent.

22In respect to condition #2, Mr. Pereira testified that the condition will ensure that the retained lands are merged in title. In response to questions from the Tribunal, Mr. Pereira consented that the condition should be revised to read ‘in a form acceptable to the County and the Township’.

23Mr. Pereira testified that condition #3 ensures that the retained land of each severance will not be transferred independently. This is a typical condition imposed by the CoA when granting a provisional consent that involves merging of titles.

24Condition #4 requires that the Resultant Lands be rezoned to an Environmental Protection (EP) zone with a site-specific exception that prohibits Forestry Use.

25The Parties indicated a different interpretation of the MoS as to whether the intention of the condition would include the abutting lands to which the Resultant Lands will be merged as part of the Application to Rezone. The Tribunal noted that it does not have the authority to impose a condition that affects lands that are not the subject of an application before the Tribunal.

26Mr. Kagan advised the Tribunal that, notwithstanding the different positions of the Parties in respect of the interpretation of the MoS as it relates to this matter, the Appellant undertakes to include the abutting lands owned by the Appellant as part of the Application to Rezone that is required by Condition #4.

27The Parties consented to the proposed conditions, as revised.

ANALYSIS AND FINDINGS

28The Appellant is not pursuing the three appeals identified as Tribunal Case numbers, OLT-22-002292, OLT-22-002294, and OLT-22-002298 and the Tribunal is being requested to dismiss the appeals in respect of these matters.

29The Tribunal dismisses the identified appeals as the Appellant is no longer pursuing these matters.

30The remaining three appeals being Tribunal Case numbers OLT-22-002295, OLT-22-002296, and OLT-22-002297 are the subject of this Order and the submissions considered by the Tribunal were applied only to these matters.

31The Tribunal accepts the uncontested planning evidence of Mr. Pereira in support of the Proposal and acknowledges that the Township and the County are supporting the Proposal as set out in the MoS.

32The Tribunal grants Provisional Consent subject to the conditions proposed, as revised, for the reasons set out below.

33As set out in s.2 of the Act, the Tribunal had regard to matters of provincial interest and notes that the Proposal will protect natural areas, features and functions and the MoS has resolved the planning conflict between public and private interests which gave rise to the decision of the Township CoA.

34The Tribunal is satisfied that the proposed severances are consistent with the PPS as the Proposal preserves the existing rural character of the Subject Lands and does not impact the existing rural housing stock. The Proposal will not impact existing natural heritage features surrounding the Resultant Lands and their ecological function remains unaffected.

35The GP establishes criteria for rural areas adjacent to Key Natural Heritage Features which do not permit development and site alteration. The Tribunal agrees that the severance of the three one-acre parcels and the merging of the contiguous retained parcels will not result in new development as contemplated in the GP. The Tribunal accepts the submission of Mr. Pereira advising that no site alteration is proposed, that the Proposal is simply a realignment of the existing property lines of the three properties with the merger of the Resultant Lands with the abutting lands owned by the Appellant, and no additional or new parcel of land is created. The Tribunal is satisfied that the Proposal conforms to the policies of the GP.

36The Tribunal, in consideration of the COP and the TOP, is satisfied that the Proposal conforms with both plans as the Proposal will not result in changes to the use of the severed lands in terms of size of the residential parcels or access and will facilitate the merging of the Resultant Lands which is provided for in both plans.

37The Tribunal finds that a plan of subdivision is not required for the proper and orderly development of the municipality and that the Proposal has regard for the matters set out in s.51(24) of the Act. Specifically, the Tribunal notes that the use of the severed lands will not change as a result of the Proposal and the lands are suitable for the purpose for which they are being subdivided. Further, the dimensions and configurations of the severed lots is appropriate and the condition requiring the retained lands be merged and rezoned to a single zoning designation is appropriate.

ORDER

38THE TRIBUNAL ORDERS that the appeals under Tribunal Case numbers: OLT-22-002292, OLT-22-002294, and OLT-22-002298 are dismissed.

39THE TRIBUNAL ORDERS that the appeals under Tribunal Case numbers OLT-22-002295, OLT-22-002296, and OLT-22-002297 be allowed in part and Provisional Consent be granted subject to the following conditions being fulfilled to the satisfaction of the Secretary-Treasurer of the Committee of Adjustment prior to the issuance of the Certificates of Consent:

a) That a copy of a registered reference plan for the subject land indicating the severed and retained parcels be prepared by an Ontario Land Surveyor and submitted to the Secretary-Treasurer;

b) That the applicant’s solicitor prepare and submit a copy of the proposed conveyances for the severed parcels to perfect the severances and of the conveyances of the retained lands to Dean Artenosi, in a form acceptable to the Township of Tay and the County of Simcoe;

c) That the Certificate of Consent be issued utilizing Form 2, Section 53 (42) of the Planning Act, R.S.O. 1990, c. P.13, as amended, without qualification provided that the Applicant shall not request that the certificate be issued for the retained lands as would otherwise be permitted by Section 53(42.1) of the Planning Act R.S.O. 1990, c. P.13, as amended;

d) That Dean Artenosi successfully rezone the Resultant Lands to an Environmental Protected (EP) zone with a site–specific exception removing Forestry Use;

e) That the conditions of consent imposed by the Tribunal shall be fulfilled within two (2) years from the date of the giving of the notice of this decision.

“David Brown”

DAVID BROWN

MEMBER

“C. I. Molinari”

C. I. MOLINARI

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

Artenosi v. Tay (Township), 2023 CanLII 5426

Case Summary

Ontario Land Tribunal

MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID BROWN AND C.I. MOLINARI AND ORDER OF THE TRIBUNAL

INTRODUCTION

SETTLEMENT PROPOSAL

LEGISLATIVE FRAMEWORK

PLANNING EVIDENCE

ANALYSIS AND FINDINGS

ORDER

Ontario Land Tribunal

MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID BROWN AND C.I. MOLINARI AND ORDER OF THE TRIBUNAL

INTRODUCTION

SETTLEMENT PROPOSAL

LEGISLATIVE FRAMEWORK

PLANNING EVIDENCE

CONDITIONS OF PROVISIONAL CONSENT

ANALYSIS AND FINDINGS

ORDER